2006 PLP 825 (MLD)

JAWWAD S. KHAWAJA, J.

The appellants/plaintiffs impugn the appellate decree dated 26-6-2004 whereby the decree of the learned trial Court dated 27-11-1995 was set aside and a suit filed by the appellants for declaration and possession was dismissed.

2. The facts of this case are straightforward. The land in dispute in the present case is one square, which originally was allotted to respondent No.2, namely, Abdul Aziz son of Shah Muhammad, in 1962. The allotment was cancelled in 1976 and the land was resumed. The said concellation and resumption attained finality because the same were not successfully impugned by respondent No.2.

3. The land in question was allotted to the appellants under the temporary cultivation scheme in 1978. The initial period of the allotment was from Kharif 1978 to Rabi 1993. The possession of the disputed land was also delivered to the appellants on 30-10-1978.

4. On 20-4-1983 a Notification was issued by the Government setting out a guidline through which proprietary rights were to be conferred on lessees of the Government land. The appellants applied for conferment of proprietary rights.

5. In the meanwhile, the respondent No.2 also filed an appeal for restoration of the land to him. The appellants were not impleaded in the said appeal but became parties on their own application. The Commissioner, vide order dated 19-2-1984, dismissed the application of respondent No.2 and at the same time also ordered cancellation of the allotment made in favour of the appellants. Feeling aggrieved the appellants preferred a revision petition which was dismissed by the Board of Revenue vide order dated 1-11-1984. It is, in these circumstances, that the appellants filed their declaratory suit impugning the orders dated 19-2-1984 (Exh. P.15) and 1-11-1984 (Exh. P.16) passed respectively by the Commissioner and the Board of Revenue.

6. The case set up by the appellants was simple. They contended that they were bona fide allottees of the suit-land, which they had acquired at an open auction. The suit was resisted by the Province and respondent No.2 but as noted above, was decreed by the learned trial Court. Here it is relevant to note that although the Province submitted a written statement it did not produce any evidence to rebut the documentary and oral evidence produced by the appellants.

7. Before the learned appellate Court the Province pleaded that the case be remanded and the Province be allowed an opportunity to produce evidence because the ex parte judgment and decree was not in the knowledge of the Province. This statement was rightly repelled by the learned appellate Court, which noted that the province was fully aware of the pendency of the suit and had been appearing before the trial Court through its functionaries.

8. The learned appellate Court, however, firstly proceeded on the premise that the prayer for possession could not be granted to the appellants because title to the suit-land was not vested in them and the suit itself was not one under section 9 of the Specific Relief Act. It was observed that unless the orders passed by the Revenue forum (Exh. P.15 and Exh. P.16) were set aside no right, title or interest could be said to vest in the appellants.

9. The appellate Court proceeded to rely on the orders (Exh.P.15 and Exh.P. i6). Based on these orders, it was held that the auction in favour of the appellants was made without publicity and the schedule of auction had not received the approval of the competent authority. Learned counsel for the appellants rightly pointed out that there was no dispute that the land was included in the schedule. Even the Province in its appeal before the District Court had not pleaded that the land was not included in the schedule. Before me also learned counsel representing the A Province admitted that the land was included in the schedule. If at all the land had been included in the schedule without proper approval, there should have been some evidence on behalf of the Province to prove this. As noted above, the Province did not produce any evidence to show that there was any illegality in the schedule.

10. The learned appellate Court next proceeded to hold that the appellants were not residents of the Chak and were, therefore, not entitled to the lease or conferment of proprietary rights in the suit-land. The basis for this conclusion is once again the orders Exh.P.15 and Exh. P.16. It was held that it was for the plaintiffs while appearing before the Revenue forums, to prove that they were residents of Chak No.4/3-R. Here it may be noted that the findings of the Commissioner in Exh.P.15 were based on a report prepared by Assistant to Commissioner (Dev). The appellants have led evidence to show that they are residents of aforesaid Chak. Throughout the litigation before the Revenue forums and the Courts below their address shows them to be the residents of said Chak. In these circumstances, at the very least some evidence should have been produced by the Province to prove that they were not residents B of the Chak in question. In the absence of such rebuttal evidence the appellants could not have been non-suited simply because some Assistant to the Commissioner had prepared a report. This is particularly so because the record does not show that the appellants were at any time associated in the preparation of the aforesaid report.

11. In the above circumstances, it is clear that the impugned appellate decree is a result of illegality in the exercise of the Court's jurisdiction. The said decree is, therefore, set aside. As a result, the decree of the learned trial Court dated 27-11-1995 is affirmed. F.M/M-1437/L??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.